Language, Thinking, Sex, and Justice
The yammering about whether Sonia Sotomayor will judge "differently" because of her ethnicity and gender grinds on. (The line that's riling folks, which you've probably read or heard a dozen times now, comes from a speech she gave 8 years ago: “I would hope that a wise Latina woman with the richness of her
experiences would more often than not reach a better conclusion than a
white male who hasn’t lived that life.” Critics object that the rule of law, not personal experience, is what should guide a judge's decision in any given case.)
This interesting addition to the discussion, "Debate on Whether Female Justices Decide Differently Arises Anew," appeared in yesterday's New York Times.
The piece focuses on a Supreme Court case regarding a 13-year-old girl who was strip-searched by school authorities for OTC painkillers. Justice Ruth Bader Ginsburg found the search objectionable; her colleagues (all 8 of whom are male, remember) weren't troubled.
Leaving aside the specific issue of strip-searching a kid for ibuprofen, I want to look at the assumptions embedded in the way this story is being described in language, as in this line: "But the idea that women may inherently view the law differently on occasion is something that troubles even several female judges who believe it may be so" (emphasis definitely mine).
So what I want to do is back up for a moment and unpack this. The word differently implies--necessitates--the existence of a norm to differ from. Such a norm indeed exists, and it is the norm of "law." But this "law," which has been written and revised over hundreds of years, is a construction made by individuals and groups of people, working together, imperfectly, over time. This construction has been authored (almost entirely exclusively, until the late 20th century) by only one identity group: white males (and you might nuance that to say mostly "economically privileged white males," though some worked their way up, etc.).
Thus, this form of writing, this body of codes, necessarily bears the marks of that group's experiences, assumptions, and ways of seeing the world. It cannot avoid doing so.
But today, these particularities are neutralized in the common imagination and in the media because, hey, it's "law." It's been authenticated by the highest political authorities available. (But again, these authenticating authorities have been white males.)
Only if you believe that the norm--the law--is magically right, which suggests a lack of historical awareness (Plessy v. Ferguson, anyone?), or if, hmm, you benefit from the way the norm is constructed, will the idea of things being done "differently" keep you up at night.
If history had been different--if women, say, had authored the statutes that governed what is legal and illegal--then reporters might be commenting on how gender-biased were these responses of two male judges, whose perspectives stem directly from the personal experience of being socialized as boys:
But again, no reporters are pointing that out.
Women know (and may have lived) the statistics: approximately 1 in 8 of us are raped as adults (by men; let's name it), and approximately 1 in 3 to 1 in 5 of us are sexually molested in childhood (primarily by men--by a vast margin). Most of us have been monitoring our dress, physical behaviors, and spatial freedom since childhood in order to mitigate the possibilities of such assaults. We carry our keys (and maybe pepper spray) in our hands and check the backseat of our locked cars when we walk out of the grocery store at night. Again, in the interests of naming the unspoken, this is due to the prevalence of attacks by men.
This is our daily, lived experience. These are the micropractices that shape our consciousnesses.
We also know intimately the various confusions of menarche, adolescence, and the attentions--welcome and otherwise--that our maturing bodies bring. We are thus far more likely to question the needfulness of an adolescent girl's being "made to stretch out her bra and underpants" so that school officials can inspect what's within. (For ibuprofen, remember. We're not talking heroin or explosives here.) Our experience inflects our understanding of what such a strip-search would feel like. We can empathize with the girl in a way that male judges' personal experience apparently prevents them from doing.
Sexual inequality before the law isn't ancient history. In graduate school in Texas in the mid-1990s, when I was sexually harassed by a man masturbating on the street, I was able to obtain his vehicle's license plate number, which I gave to the police. Because I had filed a report, my name and address were available to anyone (including the harasser) for a nominal paperwork fee. His name and address, however--though the police knew them, based on his license--were not made available to me. That was the law. The police drove by his place of business to give him a warning; they didn't want to go to his house, because he was married, they said, and they didn't want to stir up trouble with his wife. A warning, to my knowledge, is all he ever got.
He knew I had complained, and he could learn, if he desired, exactly where to find me. There was nothing I could do to prevent that, no way of protecting my name and address.
Who wrote those laws? Who enforced them? Who benefits?
So yes, women view the law (when it speaks to gendered concerns) "differently"--differently from men, for whose advantage the laws have long been written. Likewise, men also view the law differently--differently from women. Alas, women haven't historically held sufficient power to make their views of the world into "law," so the norm from which male views differ is a muted or even silenced view.
I think we can safely extrapolate from this to issues of race & ethnicity and economic class, to which Sotomayor can speak from experience, as well as sexual orientation and religion. Only when all people's standpoints are represented in the halls of power will justice be real. Only then can we afford to let it be blind. In the meantime, I'm keeping my eyes open, and so should the media.
Will Sonia Sotomayor judge differently? Probably, when it's relevant. And it's a difference we need.
This interesting addition to the discussion, "Debate on Whether Female Justices Decide Differently Arises Anew," appeared in yesterday's New York Times.
The piece focuses on a Supreme Court case regarding a 13-year-old girl who was strip-searched by school authorities for OTC painkillers. Justice Ruth Bader Ginsburg found the search objectionable; her colleagues (all 8 of whom are male, remember) weren't troubled.
Leaving aside the specific issue of strip-searching a kid for ibuprofen, I want to look at the assumptions embedded in the way this story is being described in language, as in this line: "But the idea that women may inherently view the law differently on occasion is something that troubles even several female judges who believe it may be so" (emphasis definitely mine).
So what I want to do is back up for a moment and unpack this. The word differently implies--necessitates--the existence of a norm to differ from. Such a norm indeed exists, and it is the norm of "law." But this "law," which has been written and revised over hundreds of years, is a construction made by individuals and groups of people, working together, imperfectly, over time. This construction has been authored (almost entirely exclusively, until the late 20th century) by only one identity group: white males (and you might nuance that to say mostly "economically privileged white males," though some worked their way up, etc.).
Thus, this form of writing, this body of codes, necessarily bears the marks of that group's experiences, assumptions, and ways of seeing the world. It cannot avoid doing so.
But today, these particularities are neutralized in the common imagination and in the media because, hey, it's "law." It's been authenticated by the highest political authorities available. (But again, these authenticating authorities have been white males.)
Only if you believe that the norm--the law--is magically right, which suggests a lack of historical awareness (Plessy v. Ferguson, anyone?), or if, hmm, you benefit from the way the norm is constructed, will the idea of things being done "differently" keep you up at night.
If history had been different--if women, say, had authored the statutes that governed what is legal and illegal--then reporters might be commenting on how gender-biased were these responses of two male judges, whose perspectives stem directly from the personal experience of being socialized as boys:
Justice Steven G. Breyer was one of several on the court who suggested during oral argument that he was untroubled by the search. Justice Breyer said that when he was that age, boys stripped down to their underwear in the locker room and “people did stick things in my underwear,” a comment that produced hearty laughter from Justice Thomas.But the influence of personal experience of masculine socialization--and how it might make a male judge deem some things unimportant--goes unremarked by reporters. Even the metaphors chosen by male judges, as in the "comments by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas . . . that judges should be like neutral baseball umpires," are inflected by gendered experience. (Don't Title IX me. Thomas [b. 1948] and Roberts [b. 1955] were out of school before that little gem, which passed in '72, took effect.)
But again, no reporters are pointing that out.
Women know (and may have lived) the statistics: approximately 1 in 8 of us are raped as adults (by men; let's name it), and approximately 1 in 3 to 1 in 5 of us are sexually molested in childhood (primarily by men--by a vast margin). Most of us have been monitoring our dress, physical behaviors, and spatial freedom since childhood in order to mitigate the possibilities of such assaults. We carry our keys (and maybe pepper spray) in our hands and check the backseat of our locked cars when we walk out of the grocery store at night. Again, in the interests of naming the unspoken, this is due to the prevalence of attacks by men.
This is our daily, lived experience. These are the micropractices that shape our consciousnesses.
We also know intimately the various confusions of menarche, adolescence, and the attentions--welcome and otherwise--that our maturing bodies bring. We are thus far more likely to question the needfulness of an adolescent girl's being "made to stretch out her bra and underpants" so that school officials can inspect what's within. (For ibuprofen, remember. We're not talking heroin or explosives here.) Our experience inflects our understanding of what such a strip-search would feel like. We can empathize with the girl in a way that male judges' personal experience apparently prevents them from doing.
Sexual inequality before the law isn't ancient history. In graduate school in Texas in the mid-1990s, when I was sexually harassed by a man masturbating on the street, I was able to obtain his vehicle's license plate number, which I gave to the police. Because I had filed a report, my name and address were available to anyone (including the harasser) for a nominal paperwork fee. His name and address, however--though the police knew them, based on his license--were not made available to me. That was the law. The police drove by his place of business to give him a warning; they didn't want to go to his house, because he was married, they said, and they didn't want to stir up trouble with his wife. A warning, to my knowledge, is all he ever got.
He knew I had complained, and he could learn, if he desired, exactly where to find me. There was nothing I could do to prevent that, no way of protecting my name and address.
Who wrote those laws? Who enforced them? Who benefits?
So yes, women view the law (when it speaks to gendered concerns) "differently"--differently from men, for whose advantage the laws have long been written. Likewise, men also view the law differently--differently from women. Alas, women haven't historically held sufficient power to make their views of the world into "law," so the norm from which male views differ is a muted or even silenced view.
I think we can safely extrapolate from this to issues of race & ethnicity and economic class, to which Sotomayor can speak from experience, as well as sexual orientation and religion. Only when all people's standpoints are represented in the halls of power will justice be real. Only then can we afford to let it be blind. In the meantime, I'm keeping my eyes open, and so should the media.
Will Sonia Sotomayor judge differently? Probably, when it's relevant. And it's a difference we need.
Faye said:
It seems to me that if the law was just the law, we wouldn't need judges at all. We could simply read the word of the law out of a book and apply it. Since obviously the law requires extensive interpretation (why else would we have or need an appellate process or the Supreme Court?)when I hear that a woman might judge differently than a man, my first reaction is "I hope so."
June 4, 2009 9:11 PMKelly Brown said:
Hi, gr8 post thanks for posting. Information is useful!
June 13, 2009 12:44 AM